A. Mahadeva Ayyar vs The South Indian Railway Co.

William Ayling, Kt., Officiating C.J.

This is a Civil Revision Petition u/s 25 of Act IX of 1837 in which we are asked to revise the order of the Subordinate Judge of Cochin

dismissing Small Cause Suit No. 1 of 1919 on his file. The whole case has been referred, first by a single Judge to a Divisional Bench, and then by

that Bench to a Full Bench.

This suit was one for damages against the South Indian Railway Company for short delivery of goods: and it was dismissed for failure to notify

plaintiff''s claim within six months as required by Section 77 of the Railways Act read with Section 140. The former section says:

A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss,

destruction or deterioration of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in

writing by him or on his behalf to the Railway Administration within six months from the date of the delivery of the animals or goods for carriage by

railway.

Railway Administration is defined in Section 3(6) of the Act as meaning the Railway Company itself: and Clause (5) of the same section says

that

Railway Company includes any persons, whether incorporated or not, who are owners or lessees of a railway or parties to an agreement for

working a railway.

Now the South Indian Railway Company is registered in England, and without some further provision the service of notices on such a body would

be a matter of considerable difficulty and doubt. Such a provision is Section 140, which is obviously intended for the benefit of the public to

facilitate the service of notices. It runs thus:

Any notice or other document required or authorized by this Act to be served on a railway administration may be served, in the case of a railway

administered by the Government or a Native State, on the Manager and, in the case of a railway administered by a Railway Company, on the

Agent in India of the Railway Company,

(a) By delivering the notice or other document to the Manager or Agent; or

(b) By leaving it at his office; or

(c) By forwarding it by post in a prepaid letter addressed to the Manager or Agent at his office and registered under Part III of the Indian Post

Office Act, 1866.

The effect of the sections referred to above is to bar plaintiff''s claim in this suit unless he can show that he has complied with the requirements of

the law as regards service of notice of claim. Now, in the present case, it is not suggested that any written claim was preferred to the Railway

Administration itself as defined above: or that any notice was addressed, much less served, as required by Section 140, to the Agent of the South

Indian Railway Company within the time allowed. The only notice which could be said to be served within six months was the original of Exhibit J,

which was sent to the District Traffic Superintendent, Cannanore. The Subordinate Judge finds as a fact that it is not proved that the Agent was

aware of this notice within the prescribed period; and, as one of the learned referring Judges puts it.

There is no evidence to show that the notice in fact reached the Agent, nor is there evidence of any course of business by which it would

automatically do so.

I have carefully examined the very meagre record in the case to see if there is any evidence from which it could be deduced that the power of

the Agent to receive notices u/s 140 had been delegated to the District Traffic Superintendent or that the Railway Company by its rules or course

of conduct had held out to the public that notices might be given to such an officer instead of to the Agent, and thus estopped themselves from

raising this technical defence. I can find none. There is merely the evidence of a goods clerk (Plaintiff''s witness 1) to the effect that parties usually

send their claims to the District Traffic Superintendent, who is empowered to settle them tip to Rs. 100. (The present claim is for Rs. 171.) The

rules of the Company are not in evidence: and no notification is referred to.

I can therefore find no ground for interference and would dismiss the Civil Revision Petition with costs.

Kumaraswami Sastri, J.

This Revision Petition arises out of a suit filed by the petitioner against the South Indian Railway Company to recover Rs. 171-4-0, the price of

cloths consigned through the Railway Company and not delivered. Notice of the claim was addressed and sent to the District Traffic

Superintendent, Cannanore. One of the defences raised was that the claim was unsustainable as notice was not sent to the Agent as required by

Section 140 of the Railways Act. The Subordinate Judge dismissed the suit on the ground of want of notice to the Agent within six months of the

loss. He held that it had not been proved that the notice to the District Traffic Superintendent was by the rules of the Company equivalent to notice

to the Agent. The petition originally came on before Coutts Trotter, J., who was of opinion that the defence was wholly without merit but that

owing to the important questions of law raised it should be decided by a Bench. The petition came on before the learned Judge and Sadasiva

Ayyar, J., who referred the case to a Full Bench. After referring to the conflicting authorities, Sadasiva Ayyar, J., formulated, the following

questions for consideration:

(1) Where there is a well-known practice or where there is a role made by the Company by which claims for loss are made to the District Traffic

Superintendent and are dealt with by him either in the first instance (in come cases) or finally (in others), is notice to the said official within six

months sufficient compliance, with the provisions. of Motion 77 of the Railways Act, whether on the ground of estoppel or otherwise?

(2) Should the word ""may"" in Section 140 of the Railways Act be construed as meaning ""must""?

(3) If the Agent has somehow knowledge of the claim made against the Railway Company within six months, is the plaintiff entitled to maintain the

suit?

So far as the provisions of the Railways Act are concerned they require notice of claim to be given, and enable the party to give notice either to

the Administration, which means the Railway Company itself at its Registered Office, or to the Agent or Manager in India When notice is sent to

the Registered Office or to the Agent in India, there is no difficulty. It would be sufficient compliance if, instead of sending the notice to the Agent, it

is addressed to the Railway Company at its Registered Office.

On the question as to whether the provisions of Section 140 would be sufficiently complied with if the notice is sent to an officer to whom the

Agent or the Railway Company ask the public to submit all claims for loss or damage, or if the person to whom the notice has actually been sent

sends it on or informs the Agent of its contents, within the prescribed period of six months, the authorities are conflicting. In The Secretary of State

for India in Council v. Dip Chand Poddar I.L.R(1897) . Calc. 306 notice given to the Traffic Superintendent was held to be insufficient but that it

was open to the party to show that the notice served on the Traffic Superintendent reached the Agent or Manager within six months from the date

of the non-delivery of the goods. In Woods v. Meher Ali Bepari (1908) 4 M.L.T. 427, Holmwood and Sharf-ud-din, JJ., were of opinion that

though notice of claim u/s 77 of the Railways Act must be served on the Agent as provided by Section 140, it does not require actual physical

service but that it would be sufficient ""if the findings of fact are such that it must be inferred that the Agent had full knowledge and notice of the

claim."" This case was followed in Ram Gopal v. The Agent, Bombay Baroda and Central India Railway Co. (1912) 13 I.C. 297. In Janaki Das v.

The Bengal Nagpore Railway Co. (1911) 16 C.W.N. 56 the notice was given to the Goods Superintendent to whom, under Rule 57 of the Goods

Tariff published by the Railway Company, written claims had to be made. This was held to be a sufficient compliance with the provisions of

Section 140 by the District Judge, but Jenkins, C.J., reversing the decision observed:

the method of service permitted by this section has not been followed; nor has it been shown that the claim has been otherwise preferred to the

railway administration so as to satisfy the requirements of Section 77.

The Secretary of State for India in Council v. Dip Chand Prasad (1919) 49 I.C. 498 and Woods v. Maker Ali Bepari (1908) 4 M.L.T. 427

were not referred to. In the East Indian Railway Co. v. Ram Autar (1915) 20 C.W.N. 696, the notice was served on the Claims Superintendent,

but there was no evidence that the Claims Superintendent was authorized by the Agent to receive such notices on his behalf. Chatterjee and

Beachcroft, JJ., after referring to Janaki Dass v. The Bengal Nagpore Railway Co. (1911) 16 C.W.N. 356 . The East Indian Railway Co.v. Babu

Madho Lal (1913) 17 C.W.N. 1135 and Radhakishen Chooni Lal v. East Indian Railway Co. (1899) 19 C.W.N. 62, and distinguishing Woods

v. Meher Ali Bepari (1908) 4 M.L.T. 427 on the ground that there was no finding that claims were usually referred by the Agent to the Claims

Superintendent or that the notice actually reached the: Agent, observed:

The law requires that the notice should be on the Agent and we think the notice must be on the Agent and whether a particular officer is authorized

by the Agent to receive such notices on his behalf is a question of fact that must be decided on the evidence.

In Kala Chand Skaha v. The Secretary of State for India (1917) 21 C.W.N. 751 it was held that a notice to the Traffic Manager was

insufficient. It was found as a fact by the lower Court that notice of the claim was not brought before the Agent within six months. The learned

Judges were inclined to the view that there could be no estoppel against the express provisions of Sections 77 and 140 of the Railways Act. In

East Indian Railway Co. v. Ramgati Ram (1906) 19 C.L.J. 180, Stephen and Mullick, JJ., were of opinion that a notice served on the District

Traffic Superintendent was not sufficient compliance with Sections 77 and 140 of the Act and a similar view was taken in the Agent, East Indian

Railway Co. v. Ajodhya Prasad (1919) 49 I.C. 498. In Nadiar Chand Shaha v. Wood ILR (1908) Calc. 194 , it was held that service of notice

on the Traffic Manager was not a sufficient compliance with the provisions of the Act. Mitra and Caspersz, JJ., were of opinion that the word

may"" in Section 140 ""means that, if a plaintiff is desirous of serving an effective notice of claim, the notice must be directed to the Manager or

Agent, as the case may be,"" and dissented from Periannan Chetty v. The South Indian Railway Co. ILR (1899) Mad. 137. They refused to send

the case down for a finding whether the Traffic Manager was authorized by the Agent to receive-the notice as the question did not arise on the

pleadings and no evidence was adduced on the point.

In the Great Indian Peninsula Railway Co. v. Chandra Bai ILR (1906) All. 552, Stanley, G.J., and Burkitt, J., held that notice of a claim

prescribed by Section 77. may be given either to the Railway Administration as defined in Section 3, Sub-clause (6), or in any of the ways

mentioned in Section 140, and that in view of the express provisions of the sections, service on the General Traffic Manager was insufficient. There

was no question in this case as to the Traffic Manager having been authorized by the Agent to receive such notices or of the notice having, as a

matter of fact, been communicated to him in the usual course of official correspondence. This case was followed in Great Indian Peninsula Railway

Co. v. Ganpat Rai ILR (1911) All. 544.

In The East Indian Railway Co. v. Jethmull ILR (1902) 26 Bom. 669 the notice was served on the Traffic Manager. Tyabji, J., was of opinion

that Section 77 was only intended to protect the Company against stale claims and to compel persons to make their claims within a reasonable

time so as to enable the Railway Company to make inquiries and, if satisfied, to pay the claims, that Section 140 was only an enabling section and

not exclusive and compulsory since notice on the Administration would be sufficient, and that as the General Traffic Manager was an important

officer of his Company and the principal officer charged with the duty of investigating claims made against the Company, service on him was

sufficient. It should be observed that the claim was against the Bombay, Baroda and Central India Railway Company and the East Indian Railway

Company, and that notice was sent by the plaintiff to the Traffic Manager of the Bombay, Baroda and Central India Railway Company and no

notice was sent directly to the East Indian Railway Company. The notice was however, communicated by the former to the latter Company and

this was held by the learned Judge to be sufficient. On appeal by the East Indian Railway Company, it was held by Jenkins, C.J., and Crowe, J.,

that the notice was insufficient to charge the East Indian Railway Company, as it was not shown that any claim was preferred direct to the East

Indian Railway Company and the letters written by the Bombay, Baroda and Central India Railway Company did not amount to a notice on

plaintiff''s behalf. The learned Judges do not deal with the question whether the notice would be sufficient against the Bombay, Baroda and Central

India Railway Company to whose Traffic Manager the notice was sent, nor is there any disapproval of the view taken by Tyabji, J.S as to the

sufficiency of the notice so far as the Bombay, Baroda and Central India Railway Company is concerned. This case was followed in Bombay

Baroda and Central India Railway Co. v. Saute Lal (1903) A.W.N. 235, In Great Indian Peninsula Railway Co. v. Dewashi I.L.R(1907) . 31

Bom. 534 it was held by Russel and Batty, JJ. that delivery of the notice u/s 140 must be in exact compliance of the terms of the section and must

be delivered to the Agent at his office.

So far as the Madras High Court is concerned the authorities are uniform. In Periannan Chetty v. The South Indian Railway Co. I.L.R.(1899)

Mad. 137, it was held that notice to the Traffic Manager is good notice if it in fact reached the Agent within six months. Subrahmanya Ayyar and

Benson, JJ., were of opinion that Section 140 simply provided for one mode of service, the other being service on the Bail way Company at the

Head Office in England and observe:

We do not think that Section 140 precludes a claimant, from showing that the notice required by Section 77 did, in fact, reach the Agent, within

the limited time, though not in one of the modes prescribed by Section 140. The case of the Secretary of State for India in Council v. Dip Chand

Podder ILR (1897) Calc. 306, to which the learned Counsel for the Company has drawn our attention in connexion with another point, supports

the view that we have taken as to the construction to be placed on Section 140.

In the The Madras and Southern Mahratta Railway Co., Ltd., Madras Vs. Bhimappa and Another, , the notice of claim was served on the

Traffic Manager under a rule made by the Railway Company that all applications for loss should be made to the nearest station master and the

Traffic Manager, Dharwar. The learned Judges (Benson, Offg., C.J. and Sankaran Nayar, J.) followed Periannan Chetty v. The South Indian

Railway Co. ILR (1899) Mad. 137 and observed that if a mode of service is prescribed by the Company, and is observed by the party claiming

relief, it is not open to the Railway Company to plead that the notice is insufficient.

In Seshachallam Chetty v. The Traffic Manager, His Highness the Nizam''s Guaranteed State Railway Co. ILR (1913) Mad. 65, it was held

by Sundara Ayyar, J., that though the proper person on whom notice should be served is the Agent, it may be shown by evidence that some other

officer of the Company had authority to receive the notice, either by showing that he was the person who, according to the practice of the

Company, dealt with the claims of the particular character in question or that there were rules framed by the Railway Company authorizing him to

receive the notice or in some other legal manner.

I do not think there is sufficient reason to dissent from the views taken by the Madras High Court in the decisions above referred to. So far as

Section 140 is concerned it is only an enabling provision and gives the party the option of serving the notice on the Agent or Manager of the

Railway Company instead of on the Railway Administration at its Registered Office. Section 140 refers to three modes by which service may be

effected, namely, (1) delivery of the notice to the Manager or Agent personally, (2) leaving it at his office, and (3) sending it by registered post. The

second and third methods are not personal service, but a person is relieved from further liability if he leaves the notice at the Agent''s office or

sends it by registered post, even if the notice for some reason does not actually come into the Agent''s hands. The object of the section is to see

that the Company gets notice and there is no magic in the methods provided for by the section to see that it reaches him, if as a matter of fact, the

notice comes into his hands. Supposing the plaintiff adopts the method of sending the notice by post without registration and the Agent admits

receipt of the notice which is otherwise valid, there is no reason for holding that non-registration is such a vital defect that it invalidates the notice.

The CPC provides for modes of service of summons and notices. I do not think it can be said that where a party without objection receives and

admits receipt of the summons or notice, ho can fail to appear and plead the mode by which he received the process as an excuse.

So far as notices of action are concerned, the substantial point is whether they reached the person to whom the law requires notice to be given;

and the method by which he received it is a matter which is of comparative unimportance and a deviation from the methods prescribed in the

section will, in my opinion, be only an irregularity. In Union Steam Ship Co. of New Zealand v. Melbourne Harbour Trust Commissioners (1884)

App. Cas. 365, Sir Robert Collier delivering the judgment of their Lordships of the Privy Council, observed:

Some cases have been quoted for the purpose of showing that notices of action are not to be construed with extreme strictness, a rule to which

their Lordships subscribe. Cases have been quoted in which notices of action have been upheld which would have been bad upon special

demurrer or perhaps upon general demurrer; but those cases have no bearing on the present, where the not in of action is not in form or substance

a compliance with the Act.

In cases where a subordinate official sends on the notice to the Agent or informs him of its contents within six months, I think there is a

substantial compliance with the requirements of the Act, the essential consideration being the question whether the Agent had notice of the claim so

as to enable him to take steps for the protection of the interests of the Company. I am of opinion that Woods v. Meher Ali Bepari (1908) 4

M.L.T. 427, Periannan Chetty v. The South Indian Railway Co. ILR (1899) Mad. 137, The Madras and Southern Mahratta Railway Co., Ltd.,

Madras Vs. Bhimappa and Another, and Seshachellam Chetti v. The Traffic Manager, the Nizam''s Guaranteed State Railway Co. ILR (1913)

Mad. 65, were rightly decided, and would follow them in preference to the decisions that put a strict and literal interpretation on Clauses (a), (b)

and (c) of Section 140.

There is nothing in the Act that prevents the Railway Administration or its Agent or Manager from deputing an officer to receive the notice

required by Sections 77 and 140 on its behalf. It is unlikely that the Agent or Manager would attend personally to losses and in the ordinary course

of business he would depute the Traffic Manager or District, Traffic Superintendent to investigate into the matter and report to him. Instead of

receiving the notice and passing it on to the officer concerned, the Agent or the Manager may, to save delay and official correspondence, require

the party making the claim to send the notice to the person to whom the Agent would, in the ordinary course of business, pass it on. The object of

Section 77 being to give the Company prompt notice of the claim so as to prevent stale claims and to enable it to make prompt inquiry, there is no

peculiar efficacy in its being addressed to the Agent, if the Company thinks it fit to ask the person complaining to address its claims to a

subordinate official ordinarily dealing with such claims. I am unable to find any reason for the contention that an Agent cannot depute a subordinate

officer of the Company to receive the notice, and as pointed out in West Indian Railway Co. v. Ram Autar (1915) 20 C.W.N. 696, the question

whether a particular officer is authorized by the Agent to receive such notices on his behalf is a question of fact to be determined in each case.

Agency may be proved either by direct evidence of authority, or by a course of conduct which in the opinion of the Court would justify the

inference that the subordinate official was authorized by the Agent to receive notices on his behalf.

I would answer the first and third questions in the affirmative. As regards the second question, I think Section 140 is an enabling provision and

that the word ""may"" does not mean ""must"" so as to make other modes of service ineffectual even in cases where the notice has actually reached the

Agent or where the contents of the notice have been communicated to him by the subordinate who receives the notice.

In the present case it is admitted that the notice was not sent to the Agent, and there is no evidence that the Agent had notice within the

prescribed period. The Petition fails and is dismissed with costs.

Odgers, J.

I agree with the judgment just pronounced by my Lord and have nothing to add.